Citation Nr: 0711317 Decision Date: 04/17/07 Archive Date: 05/01/07 DOCKET NO. 04-22 323 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date prior to January 2001 for a 100% rating for sickle cell disease (SCD). 2. Entitlement to an effective date prior to 14 May 2001 for the grant of service connection for hearing loss. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from June 1972 to February 1981. This appeal to the Board of Veterans Appeals arises from a May 2002 rating action that increased the rating of the veteran's SCD from 60% to 100%, effective 1 January 2001; the veteran appeals the effective date of the 100% rating, claiming various earlier effective date (EEDs) of September 1982 or the day following separation from service in February 1981. This appeal also arises from a June 2003 rating action that granted service connection for hearing loss from 14 May 2001; the veteran appeals the effective date of the award, claiming an EED. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. By rating actions of June 1981, October 1982, August 1985, July 1986, January 1987, and June 1989, the RO assigned ratings less than 100% for SCD; the veteran was notified of the ratings, but he did not appeal. 3. By rating action of April 1996, the RO assigned a 60% rating for SCD from January 1991; the veteran accepted the 60% rating as satisfying the benefit sought on appeal. 4. The veteran's claim for an increased rating for SCD was received in April 2001. 5. By rating action of May 2002, the RO granted a 100% rating for SCD effective 1 January 2001. 6. The record contains no document between the RO's April 1996 rating action and January 2001 that may be construed as a pending claim for increase for SCD. 7. During the 1-year period preceding the veteran's April 2001 claim for increase, there is no medical evidence that shows that his SCD had increased in severity such as to warrant assignment of a 100% rating. 8. On 14 May 2001, the RO received the veteran's initial claim for service connection for hearing loss. CONCLUSIONS OF LAW 1. The claim for an effective date prior to January 2001 for a 100% rating for SCD is without legal merit. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.400, 4.117, Diagnostic Code 7714 (2006). 2. The claim for an effective date prior to 14 May 2001 for the grant of service connection for hearing loss is without legal merit. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Pertinent to the claims for EEDs for the grants of a 100% rating for SCD and service connection for hearing loss, the RO has notified the veteran and his representative of the reasons for the denials of the claims, and afforded them opportunities to present evidence and argument in connection therewith. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed him. As will be explained below, the claims EEDs currently under consideration lack legal merit; hence, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Under the applicable criteria, generally, the effective date of an award based on, inter alia, an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). If a claim for service connection is received within 1 year following separation from service, the effective date will be the day following separation from service; otherwise, the effective date is the date of the claim. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Generally, the effective date for an award based on a claim for increase shall be the date of receipt of the claim or the date entitlement arose, whichever is later. Specific to claims for increase, the effective date may the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within 1 year from such date; otherwise, it shall be the date of receipt of the claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o). Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for benefits, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. 38 C.F.R. § 3.157(b). A specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for 1 or more benefits under the laws administered by the VA, from a claimant, his duly-authorized representative, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). A Notice of Disagreement (NOD) shall be filed within 1 year from the date of mailing of notification of the initial review and determination; otherwise, that determination will be come final and is not subject to revision on the same factual basis. The date of the letter of notification will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a). A. An EED for a 100% Rating for SCD By rating action of May 2002, the RO granted a 100% rating for SCD from January 2001. The veteran has requested an EED for a 100% rating for SCD from 2 September 1982, the effective date of the grant of service connection for sickle cell retinopathy (SCR) as secondary to the service-connected SCD, or from the day following separation from service in February 1981. The basic facts in this case are not in dispute. The record reflects that the veteran did not appeal a June 1981 rating action that granted service connection for SCD and assigned an initial 10% rating for that disability from 7 February 1981, the day following separation from service. He next filed a claim for increase on 2 September 1982, but did not appeal an October 1982 rating action that granted a 30% rating for SCD from 2 September 1982. He next filed claims for increase in April 1985, May 1986, and January 1987, and underwent VA examination in May 1989, but did not appeal August 1985, July 1986, January 1987, and June 1989 rating actions that denied a rating in excess of 30%. The veteran next filed claims for increase in February, May, and December 1990 and July 1991, but failed to report for VA examinations scheduled in October and November 1991, as a result of which the RO denied a rating in excess of 30% for SCD by rating action of November 1991. The veteran filed a NOD with that determination in December 1991, but the RO did not accept the NOD, instead rescheduling the veteran for a VA examination. Based on the findings on a January 1992 VA examination, the RO denied a rating in excess of 30% for SCD by rating action of May 1992. The veteran filed a NOD with that determination subsequently in May 1992, and the RO issued a Statement of the Case in June 1992. By rating action of June 1992, the RO granted service connection for SCR from July 1991 and assigned a separate 10% rating therefor from July 1991. In his June 1992 Substantive Appeal, the veteran continued to disagree with the 30% rating assigned the SCD, and requested a rating of 60% or more. In October 1994, the Board remanded this issue to the RO for further development of the evidence and for due process development. By rating action of April 1996, the RO granted a 60% rating for SCD and an EED for the grant of service connection for SCR, each effective 8 January 1991. By letter subsequently in April 1996, the veteran stated that he was satisfied with the 60% rating assigned the SCD, and accepted it as satisfying the benefit sought on appeal with respect to that issue. In October 1997, the Board granted 2 September 1982 as the effective date of the grant of service connection for SCR, and the RO implemented that decision by rating action of November 1997. In April 2001, the RO received a February 2001 statement from the veteran to his congressman requesting a 100% disability rating based on his multiple service-connected disabilities. In July 2001, the veteran claimed a 100% rating for SCD from 1982. As noted above, by rating action of May 2002, the RO granted a 100% rating for SCD from 1 January 2001. As the veteran did not appeal the June 1981, October 1982, August 1985, July 1986, January 1987, and June 1989 rating actions that increased the rating of his SCD from 10% to 30%, and then denied ratings in excess of 30%, over the years, and he accepted the 60% rating assigned by the April 1996 rating action as satisfying the benefit sought on appeal, those decisions are final, and an effective date for the assignment of higher disability ratings is legally precluded. Further, there is no evidence during the 1-year prior to April 2001 from which it is factually ascertainable that an increase in disability had occurred. Rather, in this case, the RO granted a 100% rating for SCD effective January 2001, based on the increasing disabling manifestations of SCD shown by the evidence during the year 2001. The record does not reflect, and neither the veteran nor his representative has identified, any clinical findings or examination reports since April 2000 showing the required symptomatology pursuant to which a 100% rating for SCD may be granted, i.e., repeated painful crises occurring in skin, joints, bones, or any major organs caused by hemolysis and sickling of red blood cells, with anemia, thrombosis, and infarction, and with symptoms precluding even light manual labor. See 38 C.F.R. § 4.117, Diagnostic Code 7714. Although the veteran was hospitalized at the Parkway Medical Center in September and December 2000, these were only for treatment of acute exacerbations of respiratory distress from non-service-connected chronic obstructive pulmonary disease. Thus, the Board finds that the RO correctly assigned an effective date of 1 January 2001 for the grant of a 100% rating for SCD-the earliest date that it was factually ascertainable that an increase in disability had occurred, in connection with the claim for increase received in April 2001. The claims folder simply contains no evidence of any earlier, pending claim for increase (formal or informal), or medical evidence that placed the RO on actual or constructive notice that the veteran was entitled to an increased rating for SCD in the 1-year period preceding the April 2001 claim. As the 1 January 2001 date is considered to represent the earliest evidence of increased disability from SCD in the 1- year period preceding the April 2001 claim for increase (pursuant to 38 C.F.R. § 3.400(o)(2)), the Board finds that that date represents the earliest possible effective date for the assignment of the 100% rating for SCD in this case. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by it. As, on these facts, no effective date for the grant of a 100% rating for SCD earlier than 1 January 2001 is assignable, the claim for an EED date for such grant must be denied. Where, as here, the law and not the evidence is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. An EED for the Grant of Service Connection for Hearing Loss In this case, the RO granted service connection for hearing loss effective 14 May 2001, the date of receipt of the veteran's initial claim for that benefit. The veteran has requested a grant of service connection for that disability from the 1990's, when he states he first filed a claim therefor. However, the Board finds that there is no legal basis to assign an effective date for such award at any time prior to 14 May 2001. At the time of the grant of service connection, there was no pending claim therefor prior to 14 May 2001 pursuant to which the benefit awarded could have been granted. The basic facts in this case are not in dispute. The record reflects that the veteran filed an initial claim for service connection for hearing loss on 14 May 2001. During the period from February 1981 to 13 May 2001, the record contains no statement or communication from the veteran or his representative that constitutes a claim, or reflects an intent to apply, for service connection for hearing loss that identifies such as a benefit sought. Further, neither the veteran nor his representative has identified, and the record does not otherwise reflect, any claim pending prior to 14 May 2001 pursuant to which service connection for hearing loss could have been granted. Although VA vocational rehabilitation records from 1994 to 1996 reflect the veteran's requests for evaluation for hearing services, nothing therein may be reasonably construed as a claim for service connection for hearing loss. June 1994 records reflect that the veteran was referred for a VA hearing evaluation, but he was unable to report for the evaluation because he was hospitalized. June, August, and October 1995 records reflect that the veteran again requested a hearing evaluation. In August 1996, a VA audiologist noted that the veteran was issued a hearing aid in March 1996. None of these vocational rehabilitation records document any claimed link between hearing loss and the veteran's military service. The Board notes that the applicable law and regulations clearly make it the veteran's responsibility to initiate a claim for service connection with the VA if he seeks that benefit. While the VA does have a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by the VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). In this case, the first document that can be construed as a claim for the benefit sought was filed on 14 May 2001, and 38 U.S.C.A. § 5110(a) specifically provides that the effective date of an award based on an original claim shall not be earlier than the date of receipt of application therefor. Inasmuch as no claim for service connection for hearing loss was received within one year following the veteran's separation from service, there is no legal basis for granting service connection effective the day following separation from service; rather, the governing legal authority makes clear that, under these circumstances, the effective date can be no earlier than the date of the claim for that benefit. See 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by it. As, on these facts, no effective date for the grant of service connection earlier than 14 May 2001 is assignable, the claim for an EED must be denied. Where, as here, the law and not the evidence is dispositive, the matter on appeal must be terminated or denied as without legal merit. See Sabonis, 6 Vet. App. at 430. ORDER An effective date prior to January 2001 for a 100% rating for sickle cell disease is denied. An effective date prior to 14 May 2001 for the grant of service connection for hearing loss is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs